[2025] KEHC 2055 (KLR)

Director of Public Prosecutions v Mungathia & 2 others (Criminal Case 5 of 2021) [2025] KEHC 2055 (KLR) (6 February 2025) (Judgment)

Neutral citation: [2025] KEHC 2055 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case 5 of 2021

TW Cherere, J

February 6, 2025

Between

Director of Public Prosecutions

Prosecutor

and

John Bosco Mutwiri Mungathia

1st Accused

Samuel Kaume Mungathia (Alias Sammy)

2nd Accused

Kevin Mugambi Mungathia

3rd Accused

Judgment

1. The accused persons herein face a charge of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence being that on the night of 1st and 2nd January,2020 at Amatu Village, Miinduri, in Tigania Central Sub County within Meru County jointly with others not before court murdered Grace Mwari Anthony. (Grace).

2. The prosecution presented fourteen witnesses to support their case. The first witness Mary who is step-mother of Accused persons testified that around 2:00 am, she was awakened by her daughter, Jackline due to noises outside. She went to the room Grace and another individual were sleeping and they barricaded the door. Mary hid in a closet, covering herself with clothes. She stated she saw six attackers and had specifically identified 1st accused assaulting Jackline and Grace, and the 3rd accused attacking Glory Karambu. Mary denied that there was a succession dispute between her and Accused persons.

3. The second witness Mwiti, a neighbor of Mary heard bangs from Mary’s home. He threw stones on the roof to alert them and called the police. After about 10 minutes, neighbors gathered, and they went to Mary's home, approximately 50 meters away. He observed broken windows and assisted in taking three injured victims to Mikinduri Hospital.

4. The third witness Glory, a niece of Mary recounted that while sleeping, Mary and her daughter entered her room. She noticed intruders trying to open the bedroom door after barricading it and she hid under the bed and Mary hid in the wardrobe. She stated that the attackers turned on the lights and she recognized the voice of the 3rd accused, whom she had known since 2018 who also assaulted her. She also stated she saw the 2nd in the room.

5. The fourth witness Jackline, Mary's daughter stated she heard bangs on the windows and she alerted Grace. She stated that with her mother they went to the room Grace was sleeping and it was there that she saw the she identified her step brothers 2nd accused who switched on the lights and 3rd accused who assaulted her with a metal rod causing her serious injuries.

6. The fifth and sixth witnesses Gregory and Daniel arrived at the scene long after the event and did not know how it happened. The seventh and eighth witness who are police officers similarly arrived at the scene long after the event. The eighth witness subsequently arrested 2nd and 3rd accused persons.

7. The tenth witness Ruth, a government analyst analyzed blood and clothing samples collected from Accused persons and Grace and found that the blood on the curtain in the room where the murder was committed matched the DNA profiles of Grace and an unknown male.

8. The twelve witness Dr. Nyaga examined Jackline and Mary.He found that. Jackline multiple facial fractures and a dislocated mandible which were assessed as grievous harm and Mary's injuries were assessed as harm.

9. The thirteenth witness Ronny a data analyst from Safaricom Headquarters provided call data for several numbers, noting that on January 1, 2020, at 3:10 pm, a number registered to the 1st accused was at Meru CBD, and on January 2, 2020, at around 12:50 pm, the user was at Mikinduri.

10. The investigating officer, Sgt. Oliver and his team visited the scene and commenced investigations. He stated that he obtained a visitor’s book from a hotel in Marsabit and established that 1st Accused did not spend the night there as he had alleged. After conclusion of investigations, Accused were charged.

11. After the close of the prosecution case, the accused persons were called upon to defend themselves. They gave sworn statements and called 3 witnesses in support of their case.

12. Accused 1 denied the offence. He stated he arrived home in Mikinduri from his place of work in Marsabit on 1st January, 2020 at about 9:00 pm and did not leave the house. The following day, he was informed that someone had been killed at his stepmother’s home but he was not allowed to enter the premises. He was later informed that his brothers, Accused 2 and 3 had been arrested and was also arrested when he visited them at the police station. His witness was his wife who stated that Accused 1 did not leave home on the material night.

13. Accused 2 denied leaving home on the night of 1st and 2nd January, 2020 and stated he was arrested the following day for an offence that he did not commit. His witness was his wife who stated that Accused 2 did not leave home on the material night.

14. Accused 3 stated he spent the night of 1st and 2nd January, 2020 at the home of one Mutembei. The following morning, he went to see Accused 2 who was locked up at Mikinduri Police Station and was also arrested and subsequently charged with an offence that he said he knew nothing about. He called Mutembei who stated that Accused 3 spent the material night at his home.

Analysis and Determination 15. I have considered the evidence for the prosecution and the defence. At the trial, the burden is always on the prosecution to prove that Accused persons either jointly or severally were a significant contributing factor of the death of Grace since Accused person assume no burden to prove their innocence.

16. In the case of Joseph Githua Njuguna v Republic [2016] eKLR the Court of Appeal outlined the ingredients of the offence of murder as follows: -“…Under section 203 of the Penal Code, any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder. It is clear from this section that there are three elements which the prosecution must prove beyond a reasonable doubt to secure a conviction for the offence of murder. These are;(a)the death of the deceased and the cause of that death;(b)that the appellant committed the unlawful act which caused the death of the deceased;(c)and that the appellant had harboured malice aforethought. See Milton Kabulit & 4 others v Republic [2015] eKLR.”

17. That Grace died was proved by way of a postmortem form PEXH. 1 which reveals that she died of severe head injury secondary to blunt force trauma to the head.

18. The Court of Appeal in the case of Wamunga v Republic (Criminal Appeal 20 of 1989) [1989] KECA 47 (KLR) (22 June 1989) (Judgment) 424 emphasized that evidence of visual identification must be treated with utmost caution, particularly in challenging circumstances. The court must assess the witnesses’ ability to observe, their state of mind, and the sufficiency of lighting.

19. The Court of Appeal in the case of Joseph Muchangi Nyaga & another v Republic [2013] eKLR stated that before acting on evidence of visual recognition, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him subsequently.

20. In order to establish the accused persons’ culpability, the prosecution relied on the evidence by Mary, Glory and Jackline. As analyzed above, Mary was hiding in a closet and Glory and Jackline were hiding under the bed. They stated that there was electric lighting in the room where the offence was committed.

21. And although the witnesses mentioned the presence of electric lighting in the room here the offence was committed, the prosecution failed to provide evidence detailing the intensity or position of the light, or how it illuminated the room.

22. And while the presence of electric lighting could support positive identification, several factors cast doubt on the reliability of this evidence. First, Mary’s position in the wardrobe likely restricted her ability to observe the attackers clearly. Similarly, Glory’s and Jackline’s position under the bed may have impaired their view of the perpetrators.

23. The unreliability of the witnesses’ evidence creates a reasonable doubt about whether the witnesses could reliably identify the attackers.

24. The foregoing finding is further buttressed by the fact that neither Mary, Glory and Jackline informed the persons who first arrived at the scene that they had identified any of the attackers. Similarly, when the first report of the incident was made to the police, there was no mention of Accused persons or indication that any of the attackers had been identified.

25. It is therefore not surprising that Accused persons were only named in the witnesses’ later statements to the police which was long after their arrest.

26. In Terekali & Another v Republic [1952] EACA 259, the court held that the failure to mention the identity of a suspect at the earliest opportunity may cast doubt on the reliability of subsequent identification.

27. Maiteni & Another v Republic (Criminal Appeal 2 of 2016) [2016] MWHC 648, the High Court of Malawi emphasized that when a prosecution is based on visual identification, the trial court must carefully evaluate the circumstances under which the identification was made. This includes considering whether the witness had the opportunity to observe the suspect and whether there was any delay in identifying the suspect, which could affect the reliability of the identification.

28. In Duncan Mayodi Asenji v Republic [2016] KEHC 34 (KLR) and Republic v Onesmus Kaingu Kulola alias Mtawali [2014] KEHC 5192 (KLR),the courts noted that a witness's failure to mention the identity of a suspect at the earliest opportunity could cast doubt on the reliability of subsequent identification.

29. In the circumstances of this case, I find that failure by The failure by Mary, Glory and Jackline to mention the accused persons at the earliest opportunity and in the initial report to the police undermines the credibility of their later statements. The delay raises questions about whether their subsequent claims were genuine or an afterthought.

30. Further to the foregoing, all Accused persons have denied that they were at the scene of the murder and raised the defences of alibi explaining that they were elsewhere on the material night.

31. In Ozaki & Anor Vs The State (1990) LCN/2449(SC), the Supreme Court of Nigeria in held as follows:“it is settled law that the defence of alibi raised by an accused person is to be proved on a balance of probability” and that for it to be rejected it must be incredible and that the defence of alibi must be weighed against the evidence offered by the prosecution.

32. Our own Court of Appeal in the case of Kiarie v Republic [1984] KLR held THAT: -“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.”

33. I have weighed the corroborated alibi by Accused persons vis a vis the prosecution case which cannot be said to be overwhelming and I find that the alibis introduces into the mind of the court doubt as to the truthfulness of Mary, Glory and Jackline..

34. The degree of proof in criminal cases was properly established in the classicus English case of Woolmington vs. DPP 1935 A C 462. Similarly, in Bakare vs. State 1985 2NWLR, the Supreme Court of Nigeria stated:“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability”.

35. In Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR, Mativo, J (as he then was) stated that:“To my mind, the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favourite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”

36. From the foregoing, this court finds that identification of Accused persons by Mary, Glory and Jackline is unreliable due to the witnesses’ concealed positions during the murder incident.

37. Additionally, the failure by Mary, Glory and Jackline to mention Accused persons to the people that first arrived at the scene of crime and when making the first report to the police further undermines the prosecution’s case.

38. Furthermore, the DNA profile analysis exonerated Accused persons and implicated an unknown male suspect which lead the investigators failed to investigate.

39. Finally, at the close of both the case for the prosecution and the case for the defence, the alibi defences raised by Accused persons remain unshaken.

40. The prosecution’s case in this matter fails to meet the required standard of proof beyond a shadow of doubt and cannot sustains a conviction.

41. From the foregoing analysis, I find Accused 1, 2 and 3 Not Guilty of the offence of murder Contrary to Section 203 as read with Section 204 of the Penal Code and hereby acquit each one of them accordingly. They shall be set at liberty unless otherwise lawfully held.

DATED THIS 03RD DAY OF FEBRUARY, 2025WAMAE.T. W. CHEREREJUDGEDELIVERED AT MERU THIS 6TH DAY OF FEBRUARY 2025………………………H.M. NYAGAJUDGEThis Judgment is delivered under the provisions of Section 200 (1) as read with Section 201 (2) of the Criminal Procedure Code Cap 75 Law of KenyaApology for delayThe Court acknowledges that there has been a delay in the delivery of this Judgment due unfortunate accident involving the Judge who initially presided over the matter. The Court sincerely regrets the inconvenience this has caused to the parties involved. The Judiciary remains committed to the timely dispensation of justice, and every effort has been made to ensure that this matter is concluded appropriately.